1. Courts defer to the reasonable discretion of an agency with eminent domain powers in its
determination of the necessity to take land for its lawful corporate purposes. The necessity
determination will not be disturbed on judicial review unless fraud, bad faith, or an abuse
of discretion is shown.

2. In exercising its statutory power of eminent domain, the Kansas Department of
Transportation is never required to condemn a fee simple interest in the land being taken.

3. In determining whether a party is entitled to injunctive relief, a court must consider
whether an adequate remedy at law is available to fully compensate that party.

4. A separate inverse condemnation proceeding is not available to a landowner who seeks
damages for a taking of private property where the entity taking the property has filed
formal condemnation proceedings in which the measure of damages may be litigated.

5. The doctrine of res judicata (or claim preclusion) prohibits a party from asserting in a
second lawsuit any matter that might have been asserted in the first lawsuit. Res judicata
prevents relitigation where the following requirements are met: (1) identity in the thing
sued for, (2) identity of the cause of action, (3) identity of persons and parties to the
action, and (4) identity in the quality of persons for or against whom claim is made.

David P. Troup, of Weary Davis, L.C., of Junction City, argued the cause and
was on the brief for
appellants.

Gelene Savage, of the Kansas Department of Transportation, argued the
cause, and Vicky S. Johnson, of
the same department, was with her on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Karl P. Winkel, Sr., and Karen S. Winkel, Trustees of the Karl P. Winkel,
Sr., Trust No. 1, dated July 1, 2004, (Winkel) appeal the summary judgment granted to Debra L.
Miller, Secretary of Transportation of the State of Kansas (KDOT), on a petition for injunctive
relief and damages. This appeal is a continuation of Winkel's persistent efforts, commencing in
1994, to stop KDOT's operation of an asphalt mixing strip near Winkel's farmstead. Two prior
actions were appealed to the Kansas Court of Appeals. See Winkel v. Kansas Dept. of
Transp.,
No. 73,289, unpublished opinion filed March 15, 1996 (Winkel I); and Winkel
v. Kansas Dept. of
Transp., No. 94,088, unpublished opinion filed April 7, 2006 (Winkel II). In
this latest litigation,
we affirm the district court's summary judgment denying any relief to Winkel.

FACTUAL OVERVIEW

Winkel is the current owner of an 80-acre tract of farmland (farm) in Mitchell County that
contains a farmstead on the east side of the tract. In 1952, the north/south road on the east side of
the farm was rebuilt and a new curve in the road left a triangular-shaped tract of 1.52 acres
("triangle tract") on the east side of the highway, separated from the remaining acreage on the
west side of the highway. The old north/south road on the east side of the triangle tract remained
open.

In connection with the 1952 highway project, a condemnation action established an
easement on the triangle tract for a "highway right of way." However, the owner of the farm
continued to conduct farming operations on the triangle tract for decades, until KDOT ordered
Winkel to vacate the premises in 1994. That action was prompted by KDOT's fee simple
acquisition of a strip of land adjacent to the triangle tract, on the east side of the old road, to be
used as an asphalt mixing strip. KDOT intended to, and subsequently did, use the triangle tract to
support the mixing strip operations, e.g., to store raw materials and park trucks. The
old road was
used to access the triangle tract and the mixing strip. Unbeknown to the parties, Mitchell County
had vacated the old road as a public right of way in 1993, reverting ownership of the west half of
the roadway to Winkel. We will refer to the reverted portion of the road as the "access tract."

In the first lawsuit, Winkel sought to permanently enjoin the operation of the mixing strip
and to recover damages. Winkel proceeded on the theories that the mixing strip operations
created a nuisance in the form of noise, dust, and odor which interfered with Winkel's use of the
farmstead; that the noise, dust, and odor from the operation were trespassing upon his farmstead;
and that an action for inverse condemnation was created by the reduction in value of the farm
caused by the adjacent mixing strip.

The district court granted KDOT summary judgment. The Court of Appeals agreed with
the district court's finding "that the interference with [Winkel's] use of his property was trivial at
best and that it did not, as a matter of law, cause substantial and unreasonable interference with
the use of his property." Winkel I, slip op. at 8. Referencing the Notes on Use for
PIK Civ. 2d
3.05, Winkel I found that the trial court should not permit a nuisance case to go to
the jury, if the
evidence shows no more than trivial harm. Further, the Winkel I court agreed with
the finding that
Winkel had failed to support his trespass claim with any evidence of a direct or tangible invasion
of his property by pollutants or dust. Slip op. at 19-20. Finally, Winkel I rejected the
inverse
condemnation claim because there was simply no evidence of a taking of the remaining acreage by
the State of Kansas. Slip op. at 22.

Winkel let the matter rest for several years, during which KDOT continued to operate the
mixing strip. In 2003, Winkel filed an action, again seeking to permanently enjoin the mixing strip
operation, and asking for a declaratory judgment that KDOT's use of the property exceeded the
scope of the original highway right of way easement. During discovery, the parties learned that
the old road had been vacated, i.e., that Winkel owned the west half. KDOT
acknowledged that it
had no easement to use the access tract. Nevertheless, the district court again granted summary
judgment to KDOT, finding the use of the triangle tract and access tract to be consistent with the
originally condemned easement.

On appeal, Winkel II rejected Winkel's claim that KDOT's nonuse of the
easement for 42
years, from 1952 to 1994, effected an abandonment of the triangle tract easement. Slip op. at 5.
Likewise, the Court of Appeals found that G.S. 1949, 68-413 (1951 Supp.) did not require
KDOT to obtain a fee simple absolute interest in the triangle tract, contrary to Winkel's proffered
statutory interpretation. Slip op. at 8.

However, given KDOT's concession that it had no legal interest in the access tract and
that it owed Winkel compensation for its use of that land, Winkel II found the district
court had
erred in finding KDOT's use of the access tract to be consistent with the original easement. Slip
op. at 6. Likewise, the Court of Appeals opined that the applicable statutes differentiated an
easement providing access to the materials necessary for highway construction from an easement
for the actual roadway; and that KDOT's mixing strip use placed an additional burden on the
servient estate. Therefore, the original highway right of way did not contemplate or include an
easement to access or support a mixing strip which provided materials for highways in general.
Slip op. at 11-12. Therefore, the district court's declaratory judgment on those issues was
reversed. However, Winkel II affirmed the district court's denial of injunctive relief,
finding that
any harm that Winkel had suffered did not outweigh the adverse impact an injunction would have
on the public interest and that Winkel had an adequate remedy at law. Slip op. at 14.

Thereafter, failing in its attempt to negotiate a resolution on Winkel's damages, KDOT
filed an eminent domain action to condemn an appropriate easement in both the access tract and
the triangle tract. The condemnation petition provided a metes and bounds description of each
tract, i.e., it did not purport to condemn the entire farm. The appointed appraisers'
report set the
value of the two tracts at $1,773 before the taking and at no value after the taking. Winkel
appealed the award, but that action was stayed after Winkel filed a separate action, again seeking
an injunction and damages under the recycled theories of nuisance and inverse condemnation.

The district court rejected Winkel's argument that the current version of K.S.A. 68-413
did not authorize KDOT to condemn an easement, but rather required it to condemn a fee simple
absolute interest. Consistent with Winkel II's interpretation of the earlier version of
the statute, the
district court opined that the statute permitted, but did not require KDOT to condemn a fee
simple interest.

The district court also found that KDOT's use of the two tracts to be lawful and necessary
to its public purpose; that KDOT's eminent domain petition properly described the property being
taken; that the measure of damages for the taking can be addressed in the condemnation appeal,
precluding the inverse condemnation claim; that Winkel's nuisance claim is based upon the same
allegations of interference which were found to be trivial in Winkel I; that Winkel
failed to proffer
any evidence of a material change in the mixing strip operations since 1994, other than a cessation
of operations from mid-2004 to December 2006; and that the claimed damages in Winkel's
nuisance allegation are permanent in nature, arising in 1994, and are therefore barred by the
2-year statute of limitations.

On appeal, Winkel challenges KDOT's exercise of its power of eminent domain, complains
that KDOT manipulated the legal description in its condemnation petition, and disputes that the
nuisance claim is barred by res judicata, the statute of limitations, or the statute of repose. We will
address Winkel's issues in the order presented.

POWER OF EMINENT DOMAIN

Winkel's first issue of whether KDOT properly exercised its statutory power
of eminent
domain is divided into three parts: (a) Did the district court properly determine on summary
judgment that KDOT had established a need for this particular property for its mixing strip? (b)
Does KDOT have the authority under K.S.A. 68-413 to acquire an easement to use the land as an
asphalt mixing strip? and (c) Can KDOT be enjoined from an improper use of eminent domain?

Standard of Review

The overarching standard of review for an appeal of a summary judgment is well
established, but to be complete we repeat it here:

"'"'Summary judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. The trial court is required to
resolve all facts and inferences which may reasonably be drawn from the evidence
in favor of the party against whom the ruling is sought. When opposing a motion
for summary judgment, an adverse party must come forward with evidence to
establish a dispute as to a material fact. In order to preclude summary judgment,
the facts subject to the dispute must be material to the conclusive issues in the
case. On appeal, we apply the same rules and where we find reasonable minds
could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.' [Citation omitted.]" Mitchell v. City of Wichita, 270 Kan. 56, 59,
12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d
531 [1999]).' State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107
P.3d 1219 (2005)." Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d
1052 (2007).

Necessity

Winkel asserts that KDOT failed to establish, as a matter of law, that the triangle tract and
access tract were necessary for its lawful purpose. However, Winkel does not dispute that an
asphalt mixing strip is necessary for the construction and repair of highways, KDOT's principal
mission. Nor does Winkel suggest that KDOT does not need an area to store raw materials, park
vehicles, and otherwise support the mixing strip. Rather, Winkel's complaint is that there were
other locations in Mitchell County that KDOT could have used and Winkel should have been
given an opportunity to prove that to a jury.

Winkel acknowledges that the courts defer to the reasonable discretion of an agency with
eminent domain powers in its determination of the necessity to take land for its lawful corporate
purposes. The necessity determination "will not be disturbed on judicial review unless fraud, bad
faith, or an abuse of discretion is shown. [Citations omitted.]" Schuck v. Rural Telephone
Service
Co., 286 Kan. 19, 25, 180 P.3d 571 (2008). Nevertheless, Winkel argues that there was
simply no
evidence to support KDOT's determination of necessity. We disagree.

Winkel's argument evaporates when one considers that the subject eminent domain action
does not involve the mixing strip. KDOT had already acquired that land from someone else, and
Winkel has no standing to challenge KDOT's ownership of the mixing strip. The triangle tract,
being situated adjacent to the mixing strip, is clearly and obviously the best location in Mitchell
County to store raw materials and park vehicles used in the nearby asphalt mixing operation.
Winkel's suggestion that numerous locations, miles away from the mixing strip, would be just as
suitable for KDOT's purposes is counterintuitive; such an offsite location would be, at best,
impracticable. Moreover, any argument that the access road is not necessary for KDOT's purpose
is simply nonsensical. That land provides the necessary ingress and egress for the mixing strip.
Accordingly, summary judgment on the issue of necessity was not only appropriate, it was
mandated by the evidence.

Statutory Authority to Obtain an Easement

Winkel resurrects the curious argument from Winkel II that the applicable
statute required
KDOT to condemn a fee simple interest, rather than an easement. Given that the appraisers found
that the entire value of the two tracts had been taken, the distinction is not compelling.
Nevertheless, the Winkel II court held that the prior statute permitted, but did not
require KDOT
to condemn a fee simple interest. Slip op. at 8. The current statute, K.S.A. 68-413, did not change
that law.

The crux of Winkel's argument is that subsection (b)(4) is a limitation on the rights
granted in subsection (a). In relevant part, K.S.A. 68-413 provides:

"(a) Subject to subsection (b), the secretary of transportation, in the name of the
state,
may acquire title or easement by purchase, dedication or by the exercise of the right of eminent
domain: (1) To or upon any lands or interests or rights therein; (2) to water, gravel, stone, sand
or other material; (3) to spoil banks or to borrow pits necessary for the construction,
reconstruction, improvement, maintenance or drainage of the state highway system; or (4) to
access ways to spoil banks or borrow pits or any bed, pit, quarry or other place where gravel,
stone, water, or other material required in the construction, reconstruction, improvement,
maintenance or drainage of the state highways may be located. The secretary of transportation, in
the name of the state, may acquire, by purchase, title to an entire lot, block or tract of land for
state highway purposes even though such entire lot, block or tract is not immediately needed for
state highway purposes, if the secretary finds that by so doing the interests of the public will be
best served, and without limiting the foregoing, the same may be done where uneconomic
remnants of land would be left the original owner or where severance or consequential damage to
a remainder make the acquisition of the entire lot, block or tract more economical to the state.

"(b)(1) Exercise of the right of eminent domain by the secretary shall be in
accordance
with and governed by article 5 of chapter 26 of the Kansas Statutes Annotated, and amendments
thereto.

(2) Every petition filed by the secretary to acquire lands or any interest in or title
thereto
by the exercise of the right of eminent domain shall set forth the extent, quantity and nature of
the interest or title to be acquired.

(3) Except as otherwise provided in paragraph (4) of this subsection (b), the
secretary
shall not acquire by eminent domain any right, title or interest in or to the oil and gas minerals
under or in any lands, and the petition in any condemnation proceedings shall state that right,
title or interest in or to such oil and gas minerals is not being condemned.

(4) The secretary may acquire by eminent domain the fee simple title to lands when
such
lands are acquired for sites for the construction of buildings or improvements necessarily incident
to the operation, maintenance and supervision of a state system of highways."

Statutory interpretation is a function of law over which this court has unlimited review.
Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549
(2008). The
first step is to ascertain legislative intent from the plain language employed in the statute. See
Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007).

Here, the legislature used the word "may" in subsection (b)(4), whereas in subsections
(b)(1), (2), and (3) it used the word "shall." The statute's plain language creates a presumption
that the legislature intended to make the acquisition of a fee simple interest under subsection
(b)(4) permissive, i.e., at KDOT's option.

Winkel's answer to the plain language interpretation is to suggest that, because subsection
(a) permits KDOT to acquire an easement, subsection (b)(4) would be superfluous if it likewise
permitted the acquisition of an easement. A cursory reading of the statute reveals the fallacy of
the argument. Subsection (a) addresses the property which may be acquired, while subsection (b)
principally speaks to the extent, quantity, and nature of the interest or title that may be acquired in
that property.

Moreover, subsection (b)(3) specifically precludes the acquisition of "any right, title or
interest in or to the oil and gas minerals under or in any lands." K.S.A. 68-413. Obviously, if
KDOT acquires land without the minerals interest, it has not acquired a fee simple interest.
However, the minerals interest prohibition in subsection (b)(3) is prefaced by the statement,
"[e]xcept as otherwise provided in paragraph (4) of this subsection (b)." K.S.A. 68-413. Thus,
subsection (b)(4) serves the purpose of allowing KDOT to acquire a fee simple interest,
i.e.,
including the minerals interests, in land that it will use for the purposes described in that
subsection. Therefore, subsection (b)(4) is not superfluous, and we will apply it exactly as it is
written. KDOT was not required to condemn a fee simple interest in Winkel's land.

Availability of Injunction for Improper Use

Winkel uses this issue to attack our long-standing precedent, recently reiterated in
Schuck,
286 Kan. at 24, that injunctive relief will not be granted if there is an adequate remedy at law.
Winkel argues that, as a practical matter, such a rule precludes injunctive relief ever being granted
in a condemnation proceeding, because all takings are compensable with money damages.
Accordingly, Winkel warns us that the practical result of the adequate remedy at law rule is that
condemning agencies will have no incentive to comply with the eminent domain statutes because
they can just do whatever they want, so long as they pay value for any property wrongfully taken.

KDOT counters that this court has, in fact, enjoined the inappropriate use of eminent
domain by a public utility, citing to McGinnis v. Kansas City Power & Light Co.,
231 Kan. 672,
647 P.2d 1313 (1982). In McGinnis, this court held that if the utility could not show
compliance
with statutory regulations for exercising its power of eminent domain, the injunctive relief issued
by the district court should remain in place. 231 Kan. at 685.

We decline Winkel's invitation to engage in a theoretical debate on the public policy
considerations of declining to grant injunctive relief in hypothetical scenarios. This case does not
present an indiscriminate and obviously wrongful taking for an unnecessary purpose. Indeed, the
case highlights the rationale for exercising restraint in granting injunctive relief.

Before Winkel acquired ownership of the triangle tract, it was encumbered by an easement
for highway right of way purposes. KDOT had a legally established dominant estate in the
property, whereas Winkel's interest was the servient estate. One might be curious whether
Winkel's predecessor in title received compensation for that easement equivalent to the total fair
market value of the 1.52 acres in 1952, i.e., whether the landowner has already been
fully paid for
the land. Nevertheless, KDOT's use of the triangle tract to support its mixing strip was based
upon a claimed legal right, emanating from its existing easement, which was neither frivolous nor
contrary to any existing case precedent. In such a circumstance, the appropriate and legally sound
remedy for KDOT's misreading of its legal rights to the property is to pay the landowner such
additional compensation as may be appropriate for the increase in burden
on the servient estate
occasioned by the change in its use.

Likewise, both parties were laboring under the misconception that the access tract was
dedicated to the public's use as a roadway, i.e., Winkel was not possessing or using
that land. To
Winkel, the only practical change in circumstances is that KDOT will have the sole right to use
the roadway, instead of everyone using it as such. Under that scenario, Winkel cannot show that
irreparable future injury is likely; that his injury, if any, outweighs the damage of an injunction; or
that the injunction would not be adverse to the public interest. See Schuck, 286 Kan.
at 24. To the
contrary, any money damages Winkel receives for the .45 acre, half a roadway, will be more than
an adequate remedy.

In short, Winkel has not persuaded us that we need to change the entire body of law in
this State that makes the existence of an adequate remedy at law a factor in assessing whether
injunctive relief is appropriate.

LAND DESCRIPTION/INVERSE CONDEMNATION

Next, Winkel complains that KDOT manipulated the condemnation appraisers by the
manner in which the land was described in the petition. KDOT listed the legal description of the
two tracts being taken. Winkel believes the petition should have, in some manner, described the
tracts as being a part of the whole farm, so that the appraisal report would have included the
reduction in value on the remaining approximately 78 acres occasioned by the taking of the two,
physically separated tracts. Therefore, Winkel included a claim for inverse condemnation, seeking
the alleged devaluation of the remaining land.

K.S.A. 68-413(b)(2) directs that every condemnation petition filed by the Secretary of
Transportation "shall set forth the extent, quantity and nature of the interest or title to be
acquired." Here, KDOT precisely complied with that statute. See also K.S.A. 26-502 (contents of
eminent domain petition). Winkel's complaint about the condemnation petition is unfounded.

Likewise, Winkel's purported claim for inverse condemnation is unavailing. Winkel
I
clarified that Winkel did not have an action for inverse condemnation for any reduction in value of
the remaining land caused by KDOT's operation of the asphalt mixing strip, i.e., the
noise, odor,
dust, or pollution from the operations did not effect a taking of the remaining land. Any
compensable reduction in the remaining land's value must flow directly from the taking of the
easements on the triangle and access tracts. The damage caused by KDOT's taking is the subject
of the existing formal condemnation proceedings. "An inverse condemnation proceeding . . . is
available when private property has been taken for public use without the initiation of formal
condemnation proceedings by the governmental taker." (Emphasis added.)
Schuck, 286 Kan. at
28. This rule is well established. See Kau Kau Take Home No. 1 v. City of Wichita,
281 Kan.
1185, 1189, 135 P.3d 1221 (2006) (inverse condemnation action arises when formal
condemnation proceedings have not been filed); Nat'l Compressed Steel Corp. v. Unified
Gov't of
Wyandotte County/Kansas City, 272 Kan. 1239, 1245, 38 P.3d 723 (2002) (inverse
condemnation
action "available only where private property has been actually taken for public use without
formal condemnation proceedings and it appears that there is no intention or willingness of the
taker to bring such proceedings"); Deisher v. Kansas Dept. of Transportation, 264
Kan. 762,
766, 958 P.2d 656 (1998) ("'[A]n inverse condemnation proceeding is a substitute for a formal
condemnation proceeding. It is not a supplement for a formal proceeding that does not yield all of
the satisfaction that a landowner desires.'"). Accordingly, summary judgment denying Winkel's
inverse condemnation claim was appropriate.

Winkel's real complaint is with the manner in which the appraisers valued the land. He
contends that they treated the case as being a taking of two entire tracts, rather than a partial
taking from a larger tract. The appraisers were instructed on K.S.A. 26-513, which sets forth
guidance for valuing condemned land. Part of that instruction is that if an entire tract of land is
taken, the measure of compensation is the fair market value of the property at the time of taking.
K.S.A. 26-513(b). However, if only a part of a tract of land is taken, the compensation and
measure of damages is the difference between the fair market value of the entire property before
the taking, and the value of that portion of the tract which remains immediately after the taking.
K.S.A. 26-513(c). However, the appraisers sent mixed signals as to the measure of damages they
were employing.

In their report, the appraisers noted that they had begun the process "by actual view of the
lands to be taken and of the tracts of which they are a part." Further, they submitted a value for
the two tracts before taking and a value after taking. This suggests that the appraisers were
treating this case as a partial taking under K.S.A. 26-513(c). However, they only submitted a
dollar amount for the pre-taking value of the two tracts, standing alone, which suggests an entire
taking under K.S.A. 26-513(b). If they had considered the two tracts as being taken from the
entire farm, the appraisal should have set forth a value for the entire farm (including the 2 acres to
be taken) before the taking and the value of the approximately 78 remaining acres after the taking.

Of course, any valuation of the triangle tract, whether standing alone or included in the
entire farm, should have taken into consideration that it was already encumbered by a highway
right of way easement. Likewise, one might debate whether land which has previously been
partially taken and physically separated from the remaining farm continues to be a part of the
larger tract.

Nevertheless, the bottom-line question is the amount of just compensation to be paid for
the land or the interest therein being taken by KDOT, which is the sole issue now pending in
Winkel's appeal of the condemnation award. K.S.A. 26-508. Winkel is free to challenge the
appraisers' methodology or valuation in that proceeding. A separate inverse condemnation action
is neither necessary nor permissible.

PRECLUSION OF NUISANCE CLAIM

Winkel challenges the district court's finding that the nuisance claim was barred by the
statute of limitations and makes the preemptive argument that res judicata and the statute of
repose are inapplicable, as well. The arguments present issues of law, subject to de novo review.
See, e.g., Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 396, 949
P.2d 602 (1997), cert.
denied 525 U.S. 831 (1998) (application of doctrine of res judicata a legal question).

With respect to the statute of limitations, the district court analyzed whether the claimed
nuisance was temporary or permanent. The cases attempting to make that distinction are not
always easy to reconcile. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 477,
15 P.3d
338 (2000) (although drainage ditch was a permanent structure, the flooding caused thereby was
a temporary nuisance); Isnard v. City of Coffeyville, 260 Kan. 2, 11, 917 P.2d 882
(1996) (storm
sewer was permanent nuisance from which future damages due to flooding could be reasonably
determined). We perceive that we need not muddy those waters to resolve this case.

Nearly 13 years ago, our Court of Appeals ruled that, as a matter of law, the noise, odor,
and dust created by KDOT's operation of the asphalt mixing strip did not create a substantial and
unreasonable interference with Winkel's right to enjoy his property. Winkel I, slip op.
at 17. In
2003, Winkel again sought to enjoin KDOT's operation of the asphalt mixing strip, albeit on other
theories. In this recycled nuisance claim, Winkel presents essentially the same complaints that
were litigated in Winkel I, modified only slightly to include unsupported allegations of
"ground
and possibly water contamination."

"The doctrine of res judicata (or claim preclusion) prohibits a party from asserting in a
second lawsuit any matter that might have been asserted in the first lawsuit."
Stanfield, 263 Kan.
at 397. Res judicata prevents relitigation where the following requirements are met: "'(1) identity
in the thing sued for, (2) identity of the cause of action, (3) identity of persons and parties to the
action, and (4) identity in the quality of persons for or against whom claim is made.'"
Waterview
Resolution Corp. v. Allen, 274 Kan. 1016, 1023, 58 P.3d 1284 (2002) (quoting
Regency Park v.
City of Topeka, 267 Kan. 465, 478, 981 P.2d 256 [1999]).

Winkel is suing KDOT for the third time to stop the mixing strip operations,
i.e., the
parties involved and the relief sought are identical. Winkel I involved the identical
cause of action,
i.e., a nuisance claim alleging that KDOT's mixing strip operations interfered with
Winkel's
farmstead use and devalued the remaining 78 acres of the farm. In Winkel II, Winkel
had all of the
information necessary to challenge KDOT's operations subsequent to the first lawsuit,
i.e., a
nuisance claim could have been asserted.

Winkel justifies the relitigation of this issue by alleging that the number of days that
KDOT actually operated the mixing strip during the period from 1994 to 2004 exceeded the 17
days per year of predicted use relied upon in the 1994 lawsuit. In other words, Winkel apparently
suggests that he has a new and independent cause of action for nuisance based upon new facts.
We disagree.

In an affidavit, Karl Winkel stated that a diary of KDOT's use of the property had been
kept since 1994, except for a 2-year period from late 1999 to early 2002. He relies on the diary as
the proof that the interference with his farmstead use is now substantial and unreasonable. The
record reflects the following use: March to December 1994–94 days; 1995–54
days; 1996–25
days; 1997–59 days; 1998–24 days; March to October 1999–27 days;
2002–34 days; 2003–27
days; 2004–28 days.

We agree with the district court that Winkel has not established a material change in the
circumstances, since the nuisance claim was originally litigated. Winkel's assertion that the
Winkel
I opinion was premised upon only 17 days of operation is inaccurate. That court actually
said that
"the asphalt plant in question is operated only occasionally and may be operated
as few as 17
days a year." (Emphasis added.) Winkel I, slip op. at 15. Moreover, the
decision recited the
district court's finding that "'[t]he hauling in and mixing of road repair material takes
approximately twenty (20) days per year. In addition, the repair aggregate is hauled out on
an
intermittent basis.'" (Emphasis added.) Slip op. at 6-7. Pointedly, Winkel's affidavit does
not
separately note how many of the days of recorded use involved the hauling out of repair
aggregate, i.e., that were in addition to the operation of the mixing strip, as
contemplated by the
trial court.

Even viewing the evidence in a light most favorable to Winkel, KDOT's use of the triangle
tract after 1994 was within the parameters of the occasional and intermittent operation
contemplated by Winkel I. Winkel's affidavit does not support an argument that
KDOT's
subsequent use of the property has materially increased so as to support a new and independent
action for nuisance. Winkel I's holding that the harm created by the asphalt mixing
strip is trivial
remains valid. The district court correctly granted summary judgment in favor of KDOT.